Summary
In Delta Nehi Bottling Co. v. Lucas (1939), 184 Miss. 693, 185 So. 561, the Mississippi Supreme Court pointed out that a jury would know, without a physician to tell them, that a normal person would sometimes become nauseated and experience an upset stomach when seeing in plain view a nauseating or disgusting object in a container from which he had unsuspectingly drunk or eaten.
Summary of this case from Kroger Co. v. BeckOpinion
No. 33491.
January 9, 1939. Suggestion of Error Overruled February 6, 1939.
1. FOOD.
Where there was metal object in bottled beverage which had appearance of a corroded paper clip and around which there hung a greenish substance, evidence sustained finding that foreign substance was deleterious and was proximate cause or contributing cause of the illness or of an aggravation of illness of consumer of beverage.
2. FOOD.
If conduct of warrantor of a drink for human consumption is a substantial factor in bringing about harm to another, fact that warrantor neither foresaw nor should have foreseen extent of harm or manner in which it occurred does not defeat liability.
3. FOOD.
A negligent warrantor of a drink may be liable for harm to another although a physical condition of the other makes injury greater than that which the actor as a reasonable man should have foreseen.
APPEAL from the circuit court of Leflore county; HON. S.F. DAVIS, Judge.
Gardner, Denman Everett, of Greenwood, for appellant.
Appellee failed to prove that the appellant bottled and manufactured the R.C. Cola alleged to have been drunk by Mrs. Lucas, and appellee has failed to prove any breach of warranty on the part of the appellant.
Mississippi has adopted the implied warranty theory in this type of case.
Kroger Grocery Co. v. Lewelling, 165 Miss. 426; Cudahy Packing Co. v. McPhail, 170 Miss. 504; Cudahy Packing Co. v. Baskin, 170 Miss. 834; Armour Co. v. McMillian, 171 Miss. 199; Swift Co. v. Hawkins, 174 Miss. 253.
The warranty in all of the above cases runs from the manufacturer to the consumer. It has been held that the distributor or retail seller is not liable on the warranty. It is the fact of manufacture that is important rather than the fact of sale.
Pillars v. Tobacco Co., 117 Miss. 490; Kroger Grocery Co. v. Lewelling, 165 Miss. 71.
Since the warranty attaches to the manufacturer only, the first consideration of our courts in every case involving the implied warranty since the Chapman case in 1914 reported in 106 Miss. 864, has been whether the defendant manufactured and prepared the product. Where the evidence clearly shows that the defendant manufactured and prepared the drink, the first stake which the court drives is the fact that the defendant did manufacture and prepare the product. This is the primary proposition. From this point on, the court reasons the case. Where there is any debatable question as to the manufacture or preparation, this is the very first matter which the courts direct their attention to. It must therefore be our first consideration in this case.
It is elementary that the plaintiff must prove every material allegation of the declaration. The declaration in this case alleges that the appellant prepared, manufactured, and bottled the R.C. Cola in question. This being a material allegation, appellee must prove its truth.
The burden was on the appellee to show that the bottle was manufactured or bottled by the appellant.
Coca Cola Bottling Co. v. Grubbs, 143 Miss. 590.
It is shown by the testimony that the partnership known as "Nehi Bottling Company" ceased to exist on September 1, 1937, and that a new and separate corporation came into being on September 1, 1937, known as the "Delta Nehi Bottling Company, Incorporated." These two firms are entirely separate entities. The evidence affirmatively shows that the R.C. Cola was purchased from the partnership instead of the corporation.
Coca-Cola Bottling Co. v. Grubbs, 143 Miss. 590.
The fact of manufacture must be positively established. The drink must be traced from the manufacturer to the consumer, and this may be done in the absence of direct proof by showing that the manufacturer or bottler who bottled the drink had the exclusive right of sale of that certain kind of drink in the certain territory from within which the consumer purchased the bottle. An exclusive right to sell does not prove the manufacture and preparation.
Appellee failed to prove a breach of warranty, failing completely to show what the nature of the substance in the alleged bottle was, and failing to prove that the same was injurious.
Cudahy Packing Co. v. Baskin, 170 Miss. 834; Bottling Co. v. Chapman, 106 Miss. 864; Rainwater v. Coca Cola Bottling Co., 131 Miss. 315.
The plaintiff had the burden of producing evidence to show the presence of foreign and deleterious substances in the beverage.
Reese v. Durham Coca Cola Bottling Co., 150 S.E. 198.
The proof on this question failed to show the nature of the substance and whether or not it was deleterious or injurious to the human system.
If the nature of the contents of the bottle are not known, how can it be said that it was harmful, deleterious or injurious, especially when the physical condition of the appellee was such as the record discloses it to have been at the time this drink was taken? From the testimony of all of the physicians who have testified in this case, it is highly probable that the illness of Mrs. Lucas could have occurred without any substance in the bottle. Three physicians staked their professional reputation on this opinion.
Weinberg v. Doelger Brewing Co., Inc., 174 N.Y. Sup. 69.
Knox Lamb and J.W. Bradford, both of Greenwood, for appellee.
The law of this case has been so thoroughly settled by this court in very recent decisions and the court is so familiar with the question involved, we do not think it necessary to do more than refer the court to a few of these decisions. With reference to the first proposition that there was no proof that appellant manufactured the drink, we submit that appellants are absolutely in error.
Curtiss Candy Co. v. Johnson, 163 Miss. 426, 141 So. 762.
Appellant contends that there was testimony to the effect that the appellant, Delta Nehi Bottling Co., Inc., succeeded a partnership called the Nehi Bottling Company on September 1, 1937, over three and one-half months before this R.C. Cola was purchased by appellee, and that possibly it was one of the partnership bottles from which appellee drunk. We submit that it is a well known rule of law that when a corporation absorbs a partnership or another corporation that the assets taken over are liable for the obligations of the proceeding firm. But aside from that, we have a recent Mississippi case which entirely clears up this angle of the case as well as the general question before us. Swift Co. v. Hawkins, 174 Miss. 253, 164 So. 231. This is a case wherein Swift Company, an Illinois corporation, sold to a merchant cheese unfit for human consumption and the merchant in turn retailed it to the plaintiff, who was thereby made sick. The facts showed that the cheese was not manufactured by the defendant, Swift Company of Illinois, but by another corporation. The court held Swift Company of Illinois liable because no matter who made the cheese the defendant sold it as its product and the court says: "There is thus presented an apt case for the application of the rule succinctly stated in American Law Institute, Restatement, Torts, Section 400, as follows: `One who puts out as his own a chattel manufactured by another is subject to the same liability as though he were its manufacturer.'"
Appellee drank from the bottle and there was a foreign substance in the bottle and it made her ill. It may have been that she swallowed the foreign substance that was poisonous and that which was left in the bottle was not poisonous. Appellee testified that she swallowed something beside the liquid and the proof as to what was left in the bottle was merely corroborative. It is what she drank that made her ill and not what was left in the bottle. The Mississippi cases on this subject show that it does not matter what foreign substance was in the drink so long as it was unwholesome and impure and unfit for human consumption.
Jackson Coca Cola Bottling Co. v. Chapman, 106 Miss. 864, 64 So. 791; Chinault v. Houston Coca Cola Bottling Co., 151 Miss. 366, 118 So. 177; Cudahy Packing Co. v. Baskin, 170 Miss. 834, 155 So. 217; Armour Co. v. McMillian, 171 Miss. 199, 155 So. 218; Kelly v. John B. Daly Co., 56 Mont. 63, 181 P. 326.
Argued orally by Richard Denman, for appellant, and by Knox Lamb, for appellee.
Appellee, a woman about sixty-three years of age, brought an action against appellant for damages for an illness alleged to have been caused or aggravated by a deleterious substance in a bottle of R.C. Cola, bottled by appellant and placed on the market for human consumption, part of the contents of the bottle having been drunk by appellee. The illness and the presence in the bottle of a foreign substance are overwhelmingly proved, and in such a manner as to dispel any suspicion of fabrication.
It is contended that there was no sufficient proof that appellant manufactured the particular bottle of soft drink here in question. While that issue is not proved on behalf of appellee as satisfactorily as ought to have been done, we have come to the conclusion that upon the whole record there is sufficient to prevent a reversal on that point.
The second question is whether there is sufficient proof that the foreign substance in the bottle was in fact poisonous or deleterious to such an extent as to have been a proximate cause, or contributing cause, of the illness, or of an aggravation thereof. The witnesses all agree, among them the physician who was called, that in the bottle there was a metal object which had the appearance of a corroded paper clip and that around it there clung a greenish substance which some of the witnesses described as having the appearance of mother of vinegar, this substance having a length of about 1 1/2 inches and a diameter of about 3/4 inch.
Appellee drank a part of the contents of the bottle without having noticed the bottle itself. But upon the first draught she became aware that something was wrong, and thereupon looking to the bottle found the contents as stated. In about fifteen or twenty minutes she was seized with an attack of violent vomiting, with intense pains in the stomach, and having failed to get relief from first aid home treatments a physician was called, who arrived about two hours after the drink had been taken. He concluded that she was suffering from ptomaine poisoning and treated her accordingly. She did not respond to the treatment as readily and as fully as would have been expected and the physician made the next day an analysis of her urine and found that appellee was in fact suffering from pyelitis. Appellee continued to suffer for some days.
The medical testimony contained in the record is not entirely clear, and as usual is not entirely in agreement; but looking to it as a whole in the light in which the jury could reasonably have interpreted it, that testimony indicates that pyelitis is a disease of the urinary tract which manifests itself in occasional acute symptomatic outbreaks; that among such occasions is when there has been a gastric upset; that these acute symptoms are similar in many respects to those in ptomaine poisoning; and the jury was warranted in the conclusion, based on testimony, that a person suffering with pyelitis is much more susceptible than a normal or well person to attacks of nausea which, in turn, will be attended with all the other concomitant and severer acute symptoms of the pyelitis.
The physicians spoke also of the likelihood that a normal person would sometimes become nauseated, his stomach upset, when seeing in plain view a nauseating or disgusting object in a container from which he had unsuspectingly drunk or eaten, a fact which the jury would know without the aid of physicians to tell them; and while it may well be said that such a likelihood as to a well and normal person is in the law only a remote possibility, yet, as already mentioned, the jury was justified in concluding from the testimony that as to a person suffering with pyelitis such a likelihood was more than a remote possibility, but was a real and substantial likelihood of appreciable weight and moment. In fact, the attending physician, although disclaiming any knowledge whether the foreign substance in the bottle was actually poisonous, nevertheless averred that it was the drink, in the condition which it appeared to be, which in fact caused the gastric upset and thus was a direct contributing cause of an aggravation of the attack which appellee suffered.
There being sufficient before the jury to justify and support them in the stated conclusions, there remains only to apply the two following rules, — of equal force as to warrantors of food or drink for human consumption: (1) If the actor's conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable. (2) The negligent actor may be liable for harm to another, although a physical condition of the other, which was neither known nor should have been known to the actor, makes the injury greater than that which the actor as a reasonable man should have foreseen as a probable result of his conduct. Tri-State Transit Co. v. Martin, 179 So. 349, 351.
Affirmed.